On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 40-08-A-T-09.
The opinion of the court was delivered by: Ostrer, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Ostrer.
The opinion of the court was delivered by OSTRER, J.S.C. (temporarily assigned).
The principal issue in this appeal from a conviction after a trial de novo in the Law Division requires us to construe two provisions of N.J.S.A. 2C:35-19, the notice and demand statute in the Comprehensive Drug Reform Act, N.J.S.A. 2C:35-1 to N.J.S.A. 2C:36A-1.*fn1 First, the statute requires the State to notify a defendant at least twenty days before trial that it intends to offer into evidence a laboratory certificate (lab certificate) regarding the composition, quality and quantity of drugs, and must furnish defendant with a copy of the certificate and "all reports relating to the analysis in question." N.J.S.A. 2C:35-19c. Second, the defendant must object within ten days of receiving the State's notice of intent, or else waive any objections to the admission of the lab certificate. Ibid.
In this case, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence. On de novo review, the Law Division agreed and considered the lab certificate.
We hold that the trial court failed to comply with N.J.S.A. 2C:35-19 by admitting the lab certificate into evidence without testimony from its author. We so hold because the ten-day period in which a defendant must object to the admission into evidence of a lab certificate begins to run only after the State has served upon the defendant all related lab reports. Therefore, defendant's objection was timely.
After a trial in Bedminster Township Municipal Court on October 21, 2008, and a trial de novo in the Law Division on June 25, 2009, defendant was convicted of: (1) being under the influence of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(b); (2) possession of drug paraphernalia, N.J.S.A. 2C:36-2; and (3) operating a vehicle while knowingly having CDS in his possession or in the motor vehicle, N.J.S.A. 39:4-49.1. He was acquitted of failing to signal before turning, N.J.S.A. 39:4-126. The court imposed fines and penalties, and suspended defendant's driving privileges for two years on the Title 39 conviction. A passenger in the vehicle was charged with various offenses but received a conditional discharge.
We review the record relating to the warrantless stop of defendant, the motion practice regarding the lab certificate, and the trial on the merits.
After a testimonial hearing, the municipal court denied defendant's motion to suppress the fruits of the stop.*fn2 The State's sole witness was Bedminster Police Officer John Dapkins. Counsel soon engaged in an exchange that would be relevant to an evidentiary issue in the trial itself regarding whether Dapkins could offer opinions about the presence of drugs. In reviewing his training and experience at the outset of his testimony, the prosecutor elicited that the officer was a certified drug recognition expert. After defense counsel objected to the officer testifying as an expert because the State failed to provide advance notice, the prosecutor replied, "I'm not going to proffer him as [a] DRE [Drug Recognition Expert] in this case. I have a lab report."
Dapkins then testified about the basis for the motor vehicle stop. On September 13, 2007, at about 10:05 p.m., while he was parked in a gas station facing Washington Valley Road, he saw defendant drive past him going westbound toward the intersection with Route 202/206. Defendant turned his head rapidly to look at the officer, then looked straight ahead. Defendant then pulled into a left-turn lane at the intersection and waited at a red light. Dapkins pulled behind defendant and noticed that he had not engaged his directional signal, and only did so after Dapkins activated his own.
Dapkins also testified that there was other traffic in the vicinity. One vehicle turned into a parking lot before reaching the intersection. Another vehicle traveled eastbound on Washington Valley Road, then turned right on red, southbound on Route 202/206, while defendant and Dapkins waited at the light.
After the light turned green and defendant turned left onto Route 202/206 southbound, Dapkins activated his lights to initiate a motor vehicle stop. The on-board video of the stop begins by showing defendant waiting at the red light with his turn signal activated. Dapkins explained that when he activated his lights, the video automatically retrieved what transpired during the preceding thirty seconds.
Defendant testified at the suppression hearing and admitted that when he put on his directional signal, Dapkins was already behind him. He also admitted that his car was just a "couple of feet" before the intersection when he activated his signal.
Finding that the officer had a reasonable and articulable suspicion of a motor vehicle violation, the municipal court denied the suppression motion and upon de novo review the Law Division agreed.
Shortly after the suppression hearing, on January 21, 2008, defense counsel notified the municipal prosecutor that defendant objected to the introduction of the State's laboratory certificate, and demanded that the State disclose all underlying data and also produce at trial the scientist who analyzed substances seized at the motor vehicle stop. His letter noted that the State had provided only a "Certified Laboratory Report" on October 12, 2007. Defense counsel clarified the basis for his objection in a letter dated January 24, 2008, stating, "I object to the introduction of the drug certification on the grounds that the composition, quality, and quantity of the substance tested may be inaccurate and will, as stated previously, be contested at trial."
In a January 23, 2008 response to defense counsel's first letter, the municipal prosecutor refused to produce the lab scientist, insisting that the objection was untimely, as it was not made within ten days of receipt of the lab certificate. He also asserted that defense counsel failed to set forth an adequate basis for the objection.
In light of the State's position, defendant filed a motion on January 29, 2008 to exclude the lab certificate that the State had served, and to require the State to produce its lab scientist. Defendant also challenged the constitutionality of N.J.S.A. 2C:35-19.
The municipal court denied the motions on October 21, 2008. The court concluded that the State was not required to disclose more than the lab certificate in order to trigger the ten-day period for defendant's objection to admission of the certificate. The court reasoned that if the laboratory failed to forward underlying reports to the prosecutor, then the prosecutor was not obliged to forward more than the certificate to defendant. Since defendant failed to object within ten days, he waived objection to admission of the certificate. The municipal court also held that it lacked jurisdiction to address the constitutional challenge to the statute.
The Law Division also held that the objection was untimely, without expressly addressing defendant's argument that the State's disclosure of the lab certificate alone did not trigger the ten-day period for objection. The court rejected the constitutional challenge to the statute.
At the trial on the merits, the State called three witnesses: Dapkins; Bedminster patrol officer Thomas Valente, who joined Dapkins at the motor vehicle stop and assisted in the on-the-scene investigation; and Bedminster Detective Sergeant Craig Meyer, who testified to the chain of custody of the evidence seized and the transmittal of some items to the State Lab. The other principal piece of evidence was the videotape of the stop, which recorded various admissions by defendant and his passenger.
Valente interviewed defendant's passenger at the scene of the motor vehicle stop. He appeared nervous. Valente observed a flake of vegetation on the shirt of the passenger, who admitted it was marijuana. He also admitted that he possessed four "nickel" or $5 bags of marijuana in his pocket, and a partially smoked marijuana "blunt" - a cigar shell filled with marijuana - in his shoe.*fn3 Valente arrested the passenger and seized the bags and the blunt. Valente also participated in a search of the vehicle, which he stated produced ...